As you can see from the ruling, LimeWire never really had a chance. It basically did everything that Grokster did (and potentially more), so under the Grokster ruling, it's a pretty open and shut case. Of course that doesn't mean this isn't troubling in many ways. In fact, it reiterates many of the problems with the original Grokster ruling. For example, it mentions things like the fact that LimeWire folks knew that LimeWire could be used to transfer copyrighted works. But that's meaningless. Email can be used for transferring copyrighted works. FTP too. The web as well.

Either way, I'm still wondering if, based on the Supreme Court's ruling in the Grokster case, which solidified this non-legislative concept of "inducement" for copyright infringement (something that Congress had chosen not to put into the law -- despite having the opportunity), if it's possible to create a system for more efficiently sharing files that doesn't violate the inducement standard. In most of these cases, part of the problem is that these sites advertise themselves for the ability to infringe on copyrights, and employees at the sites were active in helping users infringe. As such, you can see how that's clear inducement. But what if a site was set up that didn't do all of those things, but was still widely used for infringement. Would that still be inducement? If so, that seems incredibly troubling. The law should not be set up in a way to outright ban a technology that has a wide variety of useful applications, and is used for plenty of legitimate purposes, even if it's also used (even if regularly used) for infringing purposes.

Reader Comments

just sorting things into top lists, categories, and the like could be enough to be inducement. assembling the links together in a meaningful manner may be enough, specifically on a site that is only about trading files (different from a general search index that might include some offending material). i also think it has a lot to do with how these sites approach dmca style takedown notices, and how aggressive they are about not listing obvious violating material (such as clearly marked dvd rips, pre-release movies, video camera captures of movies, etc). think of this as the beginning of the end for any legal protection for trading copyright infringing materials.

Re: Re:

hi mike. please learn to read. it isnt 'the beginning of the end for trading copyright infringing files.' it is 'the beginning of the end for any legal protection for trading copyright infringing materials.'. pirates are actually going to be pirates, they cannot claim innocence where none exists.

"the evidence reveals that LW has not implemented in a meaningful way any of the technological barriers and design choices that are available to diminish infringement through file-sharing programs, such as hash-based filtering, acoustic fingerprinting, filtering based on other digital metadata, and aggressive user education."

The hell? If I recall correctly, even the Grokster decision didn't go as far as to say "Your programs (and presumably websites) must proactively filter copyrighted content or else". Or am I reading this incorrectly?

It is possible to set up a service that does not run afoul of cases like Grokster. Google, Bing, and Yahoo are examples. So too would be "torrent" sites that do not directly or indirectly encourage infringement and pay heed to the provisions of the DMCA.

You know what induces copyright infringement?

Inducement Threshold

But what if a site was set up that didn't do all of those things, but was still widely used for infringement.

that's happening right now. big content has filed an amicus curiae in viacom v. youtube claiming just this scenario. oh and claiming as well that the dmca doesn't apply because youtube does not provide a service.

the only consequence of this decision, which likely will be appealed methinks, will be the same as napster/grokster: said file-sharing will just further de-centralize.

Re: Inducement Threshold

considering the grokster case made it to the supreme court, it will be pretty hard to get another case up there soon. more more file sharing decentralizes, the less obvious it becomes for potential users. without some central meeting points, a system would be the best kept secret on the internet, which means few people would use it. that would effectively resolve the issue. think of it as devolving back to sneakernet, which is slow enough not to be an issue.

Re:

Things that make you go hmmmm ....

"The law should not be set up in a way to outright ban a technology that has a wide variety of useful applications, and is used for plenty of legitimate purposes, even if it's also used (even if regularly used) for infringing purposes."

and

"the evidence reveals that LW has not implemented in a meaningful way any of the technological barriers and design choices that are available to diminish infringement through file-sharing programs, such as hash-based filtering, acoustic fingerprinting, filtering based on other digital metadata, and aggressive user education."

FTP - Fail
Web Lockers - Fail
E-Mail - Fail
UseNet - Fail

Thinking outside the box ... The guys at Limewire should state ... "we are perfectly willing to implement these filtering technologies if RIAA provides them to us and shows they are effective and dont create excessive false positives"

Re: Useless

Key point: LimeWire filtered out their own stuff

One key point here is that LimeWire used filters to block sharing of their *own* stuff, but didn't make that technology available to anybody else. Kind of a fatal blow to any potential "undue burden" defences.

As for whether it can be done legally, note that the *AAs of the world aren't bothering to go after torrent client developers, they're only going after the torrent search engines and tracker hosts.

The Internet "induces copyright infringement"

Good thing Hollywood doesn't own the massive backbones the world has. If it did, the Internet that we now know it would cease to exist due to "the possibility of inducing copyright infringement".

Ugh.. I'm soo damn sick of this "inducing" crap that I could puke. Just like the following:

Buying a car can induce global warming
Eating can induce me having to use the toilet
Exercise can induce sweating and exhaustion
The MPAA/RIAA is inducing me to kill several people due to the movie/music telling me to.

Re:

It can, and (mark my words) will, be argued that Google and Bing 'run afoul' of these cases. The entertainment industry is simply racking up enough case law before they go after search engines that look more favorable than some of the torrent sites.

When they are on stronger footing, they will shake down the big search engines for a settlement. They will be looking for a "search tax" that they can collect from the guys with business models that actually work.

Re: The Internet "induces copyright infringement"

"The MPAA/RIAA is inducing me to kill several people due to the movie/music telling me to."

As I am sure you are aware, this has been tried some time ago and it was shot down. I wonder what has influenced the courts to view a similar situation and come up with the opposite conclusion?

At the time, I think one of the arguments was that a corporation could not be held accountable like a person is, or something like that. Anyway ... now that corporations are people (they can even run for office) possibly this vector may become fruitful. (evil laughter)

It appears that Columbia Pictures, Disney Enterprises, Paramount Pictures,Twentieth Century Fox, Universal, and Warner Bros. have obtained a preliminary injunction against CB3ROB Ltd from the Regional Court of Hamburg.

The injunction, which was granted without an oral hearing, states that the CB3ROB company (and its Managing Director Mr. Sven Olaf Kamphuis personally) are hereby prohibited from connecting The Pirate Bay website and associated servers to the Internet.

Shit

America is going down, together with the RIAA and MPAA. Slow, crippled internet and DRMed technology, cut down to enrich the legacy content corporations, will simply make the States the worst place to develop new tech.

Re: Well then....

if you sell guns called the 'bank robbery special' or the 'hold up gun of choice', you might be in trouble. if you give away a book called ' how to rob banks with your new handgun' with every purchase, you might be in trouble. in the case of file trading sites, if you are tolerant of obviously illegal material, encourage it, sort it, whatever, you can be liable.